Last June, Drake and Chris Brown found themselves on opposite sides of a New York City nightclub scuffle. Now, according to reports by TMZ, they are suing each other over the fight in the hopes of receiving a judicial determination of who was responsible for the brawl. The fight began after an argument broke out over the pop singer Rihanna. Eventually, punches and bottles were thrown, leaving the club in shambles and Brown with a gash on his chin. After a model named Romain Julien was also injured in the fight, he sued Brown, Drake, and the club for damages stemming from his cuts, “cosmetic defects,” and emotional distress. Most likely, Brown and Drake are seeking this determination in order to avoid paying damages should Julien win his lawsuit.

Other notable lawsuits stemming from that particular fight include Entertainment Enterprises Ltd.’s $4 million lost licensing deal claim, along with a $20 million eye injury claim brought by NBA star Tony Parker. Surprisingly, the incident resulted in no criminal charges against either party due to a lack of conclusory evidence.

A prompt and thorough investigation of a fire scene is critical to any litigation arising therefrom. Documenting the investigation plays an indispensable role to the defense of any fire case. The National Fire Protection Association (NFPA) publishes guidelines to be followed in fire investigations to ensure effective documentation of a fire scene and to assist in determining its cause and origin. The most recent edition, NFPA 921 - Guide for Fire and Explosion Investigations, can be used as an offensive weapon and defensive shield in all aspects of fire litigation. Some of the guidelines espoused are detailed as follows:

It is imperative that when sending a fire investigator to investigate a fire scene, he or she is equipped with the tools and knowledge to ensure that the investigation enhances your case. For example, photographs can be the most effective demonstrative evidence a jury may see in a fire case. The investigator must know that one of the most important aspects of photographing a fire scene is available light. The most powerful light source is of course the sun. However, the sun is not always available when the fire scene must be investigated. Burned areas have poor reflective properties and as such, a knowledgeable fire investigator should come equipped with flash devices on cameras or floodlights to artificially illuminate the area. Floodlights will need a power source to operate and the investigator must come prepared.

Not only is it imperative that your investigator understand and follow 921, but it is equally true that you, as the attorney, understand it as well. The initial investigation may make or break your case. Absent an understanding of how that investigation should be conducted, you will not truly understand your case.

To learn more about NFPA 921 and other valuable tips for investigating fire and explosion scenes to be used as a weapon or defense in your case, attend the Fire & Casualty SLG’s meeting at the DRI Products Liability conference at the Venetian Pallazzo Hotel in Las Vegas (April 11-13). If you have any particular questions about this topic, please feel free to post.

No, this does not a commentary on a lawsuit regarding a nutritional health claim against Red Bull. Instead it is about a lawsuit filed by D.C. United striker Charlie Davies against a D.C. bar, the Shadow Room, and Red Bull alleging that the two are liable under D.C.'s dram shop law for over serving a patron who went on to severely injure Davies and kill a passenger in his vehicle. The suit against Das Enterprises (which owns the bar) and Red Bull North America is pending in D.C. Superior Court. The driver at issue in the case, Maria Espinoza, was convicted of involuntary manslaughter. The suit alleges that Red Bull hosted an event at the D.C. bar at which the bar continued to serve Espinoza despite her visible intoxication. Davies claims that in addition to his physical and medical damages, Red Bull and the bar should be liable for damages due to his loss of the opportunity to play in the 2010 World Cup games in South Africa.

Davies' suit against Red Bull faces some problems. Proving social host liability, as opposed to holding a licensed establishment liable, can be tricky and varies by state. D.C. explicitly does not recognize social host liability on its own, although the case law is murky. In addition to the difficulty in tying the claims to Red Bull, Davies claimed damages related to his playing at the World Cup are speculative at best (my sixteen-year old son's opinion of his ability to score goals notwithstanding). Finally, Davies faces some comparative fault himself given he was breaking team curfew at the time of the accident.

This is a sad, high-profile incident and that alone may drive the outcome far more than the strength of the legal claims. As is often true in the hospitality industry, the media exposure is sometimes a far bigger concern than the legal costs themselves.

The Second Circuit Court of Appeals has affirmed a series of rulings made by a district judge in approving a Settlement Agreement and Mutual Release of Claims in the case of In re September 11 Property Damage Litigation, 2011 WL 1331847 (2d Cir. Apr. 8, 2011).

The settlement was made by a group of Plaintiffs in that case, the “World Trade Center Properties Plaintiffs,” with what the Second Circuit called the “Aviation Defendants” for the Defendants’ asserted liabilities under the Air Transportation Safety and System Stabilization Act of 2001 or “ATSSSA.” The Defendants were allegedly liable for negligence and other statutory fault in connection with the destructive events of September 11, 2001 insofar as the terrorists who committed well-known atrocities on that date were able to use airplanes under the Defendants’ alleged control to commit their atrocities including destruction and damage at the World Trade Center in New York City.

In approving the Settlement Agreement and Mutual Release of Claims between the WTCP Plaintiffs and the Aviation Defendants, the trial court applied New York state law in connection with various issues under the Federal ATSSSA, and without discussing those specific issues further, the Second Circuit affirmed those rulings:

In sum, we agree with the district court that the settling parties entered into their settlement agreement in good faith. We therefore conclude that the district court did not abuse its discretion in approving the settlement agreement.

Id. at *7.

The issue of broader potential interest, however, concerned the Second Circuit’s affirmance of the district court’s ruling that the proposed settlement payments would be credited towards the Aviation Defendants’ limits of liability to pay damages under the ATSSSA. The Second Circuit affirmed that ruling by beginning with the observation “that ‘liability’ refers to a ‘financial or pecuniary obligation’ that can arise through the settlement of claims.” In addition, this interpretation of the term, “liability,” as used in the federal statute would have a similar meaning as “the common understanding of ‘liability insurance,’ which commonly provides for an insured’s claim to arise ‘once the insured’s [legal obligation] to a third party has been asserted.’” Id. at *8.

By appealing to the general and common understanding of what constitutes “liability insurance,” the Second Circuit added weight to its process of interpreting a specific statutory one-word term, “liability,” and affirmed the trial court’s ruling that payments toward the settlement agreement at bar would have the effect of reducing dollar-for-dollar the paying Defendants’ statutory “liability” under ATSSSA.

On January 12, 2009, in a ruling that concerns the rights of property owners and smokers alike, the California’s 2nd District Court of Appeal ruled that Melinda Burke, a 7-year old asthmatic, had standing to file suit as a tenant against her family’s apartment complex over second hand smoke in outdoor common areas.

While acknowledging that her claims may face significant challenges overcoming summary judgment, specifically the question of whether the company breached its duty to maintain premises in a safe condition, the Court of Appeal ruled that Melinda Birke demonstrated sufficient standing to withstand a demurrer.

The 2nd District found that Melinda had standing as the family member of a tenant within the apartment complex, and that her health problems of aggravation of her asthma and chronic allergies were not similar to the general public’s increased risk of heart disease and lung cancer from second hand smoke.

This ruling threatens to restrict further the rights of smokers and increase liability for property owners. In Birke, the smoking in this case occurred in outside common areas, and this ruling could prevent smokers from smoking in any place other than areas specifically designated for smokers, even in their own apartment complex. Moreover, it opens up property owners to liability for creating public nuisances by providing for cigarette disposal in common areas, and increases those members of the public to whom they owe a duty.